The new DoLS ‘replacement’ proposals herald an expansion of professional attention to people’s care plans. This can only be good, especially as they do not add to the burdens of the provider sector.
The proposals follow the Cheshire West ruling that most restrictive regimes for people lacking capacity should be regarded as triggering the safeguards, without providers of care having to struggle to distinguish between restriction and deprivation.
The proposals introduce a concept of Protective Care which, when its defining features arise, triggers safeguards to ensure that what is planned is proportionate and necessary.
The idea is to provide the extra layer of attention that the significance of detention, restriction or any impingement on a person’s intimate and personal life, their bodily integrity, and privacy, requires to comply with human rights law, without it generating a need for a double layer of care planning. The care plan – usually signed off by councils and Clinical Commissioning Groups (CCGs) but sometimes by privately funded providers – will be the authorisation for the regime.
But the regime will still only apply for incapacitated people. People with capacity needing care are expected to be able to look after their own interests, if they are overly restricted, within the labyrinthine twists of community care and capacity law!
The meaning of ‘restrictive care and treatment’ for the highest level of scrutiny would be determined by reference to the existence of any one of a list of features commonly regarded as impinging on a person’s choices.
Applying Cheshire West
The reason we will still need to focus on the meaning of deprivation of liberty is twofold. First, because the proposed regime for the acute hospital setting is only triggered by deprivation of liberty; and second, wherever the much simpler acid test, laid down since the Cheshire West case, is met there will have to be external medical evidence (by a Section 12 doctor or a psychologist, ‘some other medical expert including the person’s GP’) regarding unsoundness of mind or incapacity, as part of the authorisation process. That is what the European Convention of Human Rights (ECHR) article 5 requires (not a nurse or social worker as is provided for by the role of Responsible Clinician in the Mental Health Act).
There is no suggestion as to how this new role will be imposed on GPs or paid for, or the implications for the NHS of the time it will take.
Approved Mental Capacity
Professionals
Beyond merely ‘supportive care’ care plans, whether or not there is full on deprivation as part of the care plan, the signing off of a ‘restrictive’ plan would require the input of a new professional called an Approved Mental Capacity Professional (AMCP). These people will be working for councils or CCGs or independently, but they will operate like a Best Interests Assessor (BIA) is obliged to, with independent statutory tasks that are only for them and their own judgement.
“In some cases the AMCP might decide that the assessment should be carried out by the professional already working with the person. The AMCP might also act as a general source of advice for the assessor – to assist them to apply the principles of the Mental Capacity Act and share good practice. In other cases, the AMCP could take charge of the restrictive care and treatment assessment themselves and thereby ensure that an independent assessment takes place.”
The proposals suggest that it should be the AMCP who does that thinking as to whether care is restrictive or depriving of liberty, as the BIA does currently. That invidious duty will extend to domestic settings, whether the awareness of the situation has arisen through safeguarding concerns or ordinary care planning. There would still be debates between AMCPs, families and doctors as to whether what was going on was properly restrictive care amounting to deprivation of liberty or merely supportive care. AMCPs will have to be kept legally literate to discharge these responsibilities!
Where, currently, there would be an urgent authorisation issued by the provider to itself, the first recourse of the care provider should be to an AMCP who would be able to give temporary authority (or up to seven days and to extend this period once for a further seven days).
Conflicts over costs
The Law Commission fears that the role envisaged for AMCPs risks creating individuals with power to determine that commissioners will have to spend more money and it has tried to to draw a line between their imposing conditions on the regime provider, and recommending conditions for the care plan.
Concern is over sensitive because wherever there is a Section 25 Care Act plan for an eligible person, the care plan should match what was being commissioned. There is no legal conflict between what councils can do and what their staff can do; and if the role of an LA officer is to be combined with an independent statutory role under new legislation, LAs will just have to put up with their staff having more power over their decision making.
This is not new. It indicates that the people who have written the report don’t understand community care law, or have been influenced by senior management. Professional opinion as to what is appropriate, adequate, suitable or necessary has always been the determinant of whether the package is lawful. It is the reason social work is a profession and judges only require defensible decision-making from the sector’s professional staff!
The new scheme of protective care will apply to hospital, care home, supported living, shared lives and domestic accommodation. However, the nature of the safeguards will vary according to the particular setting.
The acute hospital regime
We know that the DoLS are treated as irrelevant in hospitals and in the medical sphere but the law is the law so we do still have to have something to meet the scrutiny and process aspects of article 5.4 of the ECHR.
What we are going to get is a doctor simply authorising DoL, for up to 28 days, with a signature. The signature carries with it the obligation to appoint responsible clinicians, advocates and representatives but I reckon they will never get to the point of being used, if the person is discharged quickly, or gets through their incapacitated crisis in A&E and goes home.
It will only be necessary to embark on this procedure if full deprivation of liberty is involved so anything short of a clear case of deprivation won’t attract the benefits of special professional attention, even if it is clearly restrictive. Hospital managers will determine whether something is deprivation of liberty or not and will need to be reminded of the acid test of whether the person is free to leave or not.
In a hospital Assessment and Treatment Unit, where a person is staying for a long time, it would be the duty of the responsible clinician to prepare a written care plan for the patient. This clinician would be expected to consult the patient, any carer, and any other person interested in the person’s care. Copies of the plan should be given to these people following the authorisation of a deprivation of liberty. Also, an advocate or an appropriate person, must be appointed for the patient, radically improving accountability for what goes on in such places.
Advocacy for this area of activity
Advocacy is to be streamlined and extended to anyone qualifying for even ‘supportive’ care planning and not merely restrictive care, regardless of whether they have relatives or friends to speak up for them or be consulted. It is not easy to grasp how this will be done. Advocacy by IMCA (Independent Mental Capacity Advocacy) turns on someone being unsupported by a person who could be consulted and being incapacitated on the issue in question; DoLS advocacy can be triggered regardless of whether you are befriended whereas Care Act advocacy turns on facing substantial difficulty without anyone to support you but is not relevant to a person having a self-funding non-Care Act journey.
The Commission thinks there are no advocacy provisions for Continuing Health Care (CHC). Since all CHC assessments should involve multi-disciplinary input and a joint working LA’s input would be assumed to be a Care Act assessment (even if no duty arises to meet needs), that is incorrect. The eligibility decision-making process for CHC should incorporate triggers to Care Act advocacy and the NHS thus avoids having to pay for that service!
Day care and own home settings
The proposals don’t cover day care – presumably because Section 4B of the MCA is still good enough for legitimateley detaining someone for their own good in an emergency.
Even though the case law says that a non-State funded private person who is making their own personal decision to deprive a person of their liberty at home, is not breaching human rights, they may be depriving them of their liberty or committing the civil law wrong of unlawful detention. They thus need to follow the MCA Code if restricting the person or going even further than that and a council aware of this must do its best to mitigate the situation to remain human rights compliant. The Commission’s proposals envisage the safeguards as applicable in domestic settings – although with the sensitive light touch important for parent carers.
Appeals
It is unclear as to what will become of the Tribunal recommendations now that the Dilnot provisions for an appeal system have been dropped. The proposals emerged before the deferral was announced and, even then, the comparison between appeals and DoL appeals to a Tribunal was not well explored. Now the issue is harder: an appeal can be made against the care plan contents for those deprived of their liberty but not for anyone else.
Consultation responders might like to shout very loudly that we need a social care tribunal system!
I broadly approve of the proposals but I think there is some disingenuousness and some serious error of legal thinking in the analysis of some of the harder areas; for instance, the hospital regime and the relationship between the MCA and public law decision making, both beyond the scope of this article.
For the Law Commission’s proposals see: http://www.communitycare.co.uk/2015/07/08/deprivation-liberty-summary-law-commissions-reform-proposals/
For changes to the MCA in relation to DoLs safeguards see: http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/#mental-capacity-and-deprivation-of-liberty-consultation
Further thoughts on the system can be found on Belinda’s new blog Schwehr on CARE at www.schwehroncare.co.uk.
